There is no doubting increased social media use around the world means people are more connected to each other today than ever before. All it takes is a quick Facebook search to locate a person’s whereabouts, activities, and interactions with colleagues, friends, and family. This expanded access to information has led many employers to monitor and regulate the words and conduct of their employees outside of work, and at times, to terminate a worker’s employment for what the employer views is unsavory, disparaging, or unflattering behaviors. Most recently, actress-comedienne Roseanne Barr lost her job and had her self-named TV series cancelled because she made a racially offensive tweet about Valerie Jarrett, a former senior aide to former President Obama. While this may be an extreme example, it begs the question, “To what extent can an employer terminate an employee for their behavior outside of the workplace, specifically, for their social media use?” The answer is not entirely clear.
Generally, employees in New Jersey are considered at-will, meaning their employer can terminate a worker’s employment for any reason or no reason, including social media use, so long as the termination does not violate law. However, the National Labor Relations Board (“NLRB”) has determined that certain social media use is considered “protected concerted activity” and termination for that type of social media use to be a violation of federal law. The NLRB is an independent federal agency created by Congress to protect employees’ rights to unionize, and also acts to prevent and remedy unfair labor practices committed by private sector employers and unions. https://www.nlrb.gov.
In Meyers II, 21 NLRB 882, 887 (1986), the NLRB defined concerted activity as, “individual employees that seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” In NLRB v. Karl Knauz Motors, Inc., 358 NLRB 1754, 1763 (2012), an Administrative Law Judge concluded that a BMW car salesperson was fired for posting pictures on Facebook related to an accident that took place at a sister dealership, rather than because of pictures posted by him to criticize the food and drink served at a luxury car event attended by that many other salespeople. The NLRB stated the photos of the accident were not protected activity and placed the dealership in a bad light, while the photos used to criticize the food at an event not hosted or sponsored by the employer were examples of protected concerted activities.
Here in New Jersey, our State’s Social Media Privacy Protection (SMPP) Law prohibits employers from retaliating or discriminating against an individual because the individual has done or was about to do any of the following: a.) Refuse to provide or disclose any user name or password, or in any way provide access to, a personal account through an electronic communications device; b) Report an alleged violation of the SMPP to the New Jersey Department of Labor and Workforce Development; c) Testify, assist or participate in any investigation, proceeding, or action concerning a violation of the SMPP; or d) Otherwise oppose a violation of the SMPP. The SMPP imposes civil penalties on employers who violate the law, “… in an amount not to exceed $ 1,000 for the first violation and $ 2,500 for each subsequent violation. . .” However, the SMPP’s protections are relatively minimal given employees are not permitted to bring a private civil suit against their employer for violating the law, and also does not prohibit employers from retaliating or terminating an employee for information that is accessible to the public on social media accounts.
Prudence dictates that before posting on social media an employee should recognize that their employer may have access to the employee’s posts and read them. This means an employee could be fired for social media postings if what is posted is not voicing complaints on behalf of a group about pay or work conditions that is, what is deemed protected concerted activity
If you believe you have been the victim of unlawful retaliation in the workplace for taking part in or making a social media post that is considered concerted activity, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. Mashel Law, located in Morganville, New Jersey, is dedicated to protecting the rights of employees.